Allowed

Shivappa @ Shivakumar v. the State of Karnataka

Karnataka HC17 Feb 2023CRL.RP/454/2014

Case brief

AI extract

What is this about?

In a criminal revision petition challenging convictions for wildlife offences, the High Court of Karnataka examined whether a Deputy Superintendent of Police had the statutory authority to file a complaint under Section 55 of the Wild Life (Protection) Act, 1972. Finding the complaint incompetent as the officer was not listed in the statutory categories authorized to lodge such complaints, the Cou

What did the court decide?

Revision petition allowed; judgment of conviction and sentence set aside; accused acquitted.

Shivappa @ Shivakumar Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL REVISION PETITION NO.454 OF 2014

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BETWEEN:

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SHIVAPPA @ SHIVAKUMAR, AGED 43 YEARS, S/O LATE KAREGOWDA, R/O MAMBALLI VILLAGE, YELANDUR TALUK, CHAMARAJANAGAR DISTRICT-571 441.

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SREENIVAS AGED ABOUT 36 YEARS, S/O VENKATARAJU, R/O KINAKAHALLI VILLAGE, YELANDUR TALUK, CHAMARAJANAGAR DISTRICT-571 441.

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...PETITIONERS

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(BY SRI. P. NATARAJU,. ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY KOLLEGAL TOWN POLICE STATION, KOLLEGAL, CHAMARAJANAGAR DISTRICT, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560 001.

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...RESPONDENT

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(BY SRI. K. NAGESHWARAPPA, HCGP)

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE LEARNED DISTRICT AND SESSIONS JUDGE AT CHAMARAJANAGAR IN CRL.A.NO.22/2010 DATED 16.06.2014 AND THE JUDGMENT AND ORDER OF CONVICTION PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.) AND JMFC AT KOLLEGAL IN C.C.NO.141/2009 DATED 25.05.2010, AND ACQUIT THE PETITIONERS BY ALLOWING THIS REVISION PETITION IN THE INTEREST OF JUSTICE.

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THIS CRL.RP HAVING BEEN HEARD AND RESERVED FOR ORDER ON 03.02.2023, POSTED FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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This Revision Petition is filed by the petitioners herein being accused in C.C. No.141/2009 on the file of Senior Civil Judge and JMFC, Kollegala, being aggrieved by the Judgment of their conviction and sentence passed in the said criminal case dated 25.05.2010 and confirmed by the Dist. and Sessions Judge, Chamarajanagar, in Crl.A. No.22/2010, dated 16.06.2014.

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Brief and relevant facts leading up to this Revision petition are as under:

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The parties to this Revision are referred to as per their rank before the Trial Court for the purpose of convenience.

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That the Kollegala Town Police filed the charge-sheet against the accused for the offences under Sections 9, 39A and 51 of the Wild Life (Protection) Act, 1972 read with Section 379 of IPC alleging, that on 01.10.2005 at about 9.00 p.m., on receipt of credible information, the complainant and his staff went to the APMC Yard at Kollegala, on the information that there was a securing of a tiger hide (skin) by some unknown persons and they are attempting to dispose of the same for higher price. When they went to the said place, they noticed coming of a Maruti Omni car bearing Registration no. KA-18M-3924. The said car was parked near Achgal lodge. When the complainant and his staff inspected the said car, it is noticed that accused Nos.1 and 2 named in the chargesheet had secured the said tiger hide (skin) from accused Nos.3 and 4 and attempted to sell the same at higher price. Thus, it is alleged that, these accused persons were found

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transporting the said tiger skin, thereby they have committed the aforesaid offences under Sections 9 39A, 51 of Wild Life Protection Act read with Section 379 of IPC. The I.O. in this case prepared the panchanama, seized the said tiger skin, recorded the statements of the witnesses so also confession statement by accused, obtained report from the competent department with regard to the identification as tiger skin and after completion of the investigation, charge-sheet is filed against accused persons.

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The records of this case would reveal that during trial stage itself, these Revision Petitioners were enlarged on bail.

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After filing charge-sheet, the learned JMFC took cognizance of the offences. Copies of the charge-sheet were furnished to the accused persons as contemplated under S.207 of Cr.P.C. Thereafter, charges against the accused persons for the offences framed were read over and explained to them in the language known to them. They pleaded not guilty and claimed to be tried.

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Before the Trial Court, to prove the guilt of the accused, prosecution has examined 11 witnesses from P.Ws.1 to 11,

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and got marked Exs.P1 to P8 and also M.O. 1, the tiger skin, M.O. 2 plastic bag, and closed the prosecution side evidence.

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After closure of the prosecution evidence, accused were questioned under Section 313 of Cr.P.C. so as to enable them to answer the incriminating circumstances appearing in the evidence of the prosecution. They denied their complicity in the crime and did not choose to lead any defence evidence on their behalf.

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The learned Trial Court after hearing the arguments of both the sides, convicted the accused persons and sentenced them to undergo simple imprisonment for six months and fine of Rs.2,000/- each for the offence under S.9 of the Wild Life Protection Act and six months' simple imprisonment and fine of Rs.2,000/- each for the offence under Section 39A read with Section 379 IPC, with default sentence.

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Being aggrieved by the said Judgment of conviction and sentence passed in C.C. No.141/2009 dated 25.05.2010, accused Nos.1 and 2 preferred Crl. A. No. 22/2010 and accused Nos.3 and 4 preferred Crl.A. No. 26/2010 before the Dist. and Sessions Judge, Chamarajanagara.

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The learned Appellate Court dismissed both the appeals by passing common Judgment as per the Judgment dated 16.06.2014 by confirming the Judgment of conviction and sentence passed against accused Nos.1 to 4.

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It is accused Nos.1 and 2 independently challenged the said Judgment by preferring this Revision Petition on the following:

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GROUNDS

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That Judgment and Order of sentence passed by both the Courts are contrary to law and facts and against the evidence placed on record. The said Judgments suffer from infirmities and illegalities. These accused persons are not related to M.O.Nos.1 and 2 and they belong to P.W.4. Both the Courts failed to notice that the car bearing Registration No. KA-18M-3924 was not seized by the police. The seizure panchanama is not proved in accordance with law. All the witnesses who have been examined are the interested police witnesses. P.W.1 had no authority or jurisdiction to file the complaint for the offences punishable under the provisions of the Wild Life (Protection) Act. There are so many

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contradictions and omissions and discrepancies in the evidence of the prosecution which have not been considered by both the Courts. Thus, it is alleged that the Judgments of conviction and sentence passed by both the Courts are arbitrary, illegal, opposed to law, facts and probabilities. Therefore, amongst other grounds, it is prayed to allow this Revision Petition.

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After filing this Revision Petition, notice came to be issued to the respondent. Learned HCGP appeared before the Court. Records of the Trial Court and Appellate Court are secured. Accused Nos.1 and 2 are granted bail.

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Heard the arguments of both the sides. Meticulously perused the records.

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The learned counsel for the Revision Petitioners - accused submits that these Revision Petitioners are no way concerned with regard to commission of offence as alleged by the prosecution. He submits that there are so many contradictions, omissions and discrepancies. These factors are not considered by both the Courts. There is no proper appreciation of evidence by both the Courts. Further, he submits that, under the provisions of the Wild Life (Protection)

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Act, 1972, the police officers are not empowered to lodge a complaint or conduct an investigation. Therefore the very filing of the complaint and filing of a charge-sheet by the respondent - police is illegal. In support of his submission, he relies upon Section 55 of the Wild Life (Protection) Act, 1972 and also relies upon the Judgments of this Court in Crl. A. No.359/2011 (DD 31.08.2018) in a case between Govindaswamy Vs. The State of Karntaka by Divisional Forest Officer, Bhdravathi Division, Bhadravathi and Crl. A. No.1175/2010 clubbed with Crl.A. No.1220/2010 (DD 13.07.2018) in a case between R. Shivakumar vs. State of Karnataka (by Chamarajanagara P.S.) and also an Order passed in Crl.RP No. 479/2014 dated 16.03.2020 in a case between Boraiah @ Boregowda @ Papanna, S/o late Mayanna Vs. The State of Karnataka by the Police of Gundlupet Police Station, Chamarajanagara. He prays to allow the Revision Petition and acquit the accused persons Nos. 1 and 2.

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As against this submission, the learned HCGP submits that, both the Courts have given the concurrent findings based upon the factual evidence adduced by the prosecution. There is proper appreciation of the evidence and application of

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law by both the Courts and therefore he supported the reasons and findings of both the Courts. He submits that the Revision Petition is liable to be dismissed.

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I have given my anxious consideration to the arguments of both sides.

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In the light of the submissions being made and on perusal of the records, the following point arises for my consideration:

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"Whether the Judgment of conviction and sentence passed by the Trial Court is arbitrary, capricious and opposed to law and hence, requires interference by this Court?"

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On reading the materials placed on record, this Criminal Case arises out of a complaint filed by one M.S. Shivamurthy, Dy.S.P., Kollegalal Sub Divison, Kollegala being the police officer defined under the provisions of the Karnataka Police Act, 1963. He alleges that, as he has taken charge as Dy.S.P., he has given importance to protect the wild life and also has given instructions to his staff to implement the provisions of the Wild Life (Protection) Act. According to him,

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on 01.10.2005, along with his staff, on receipt of credible information, went to APMC Market at about 8.30 p.m. and were waiting. At about 9.00 p.m., one Maruti Omni entered the APMC compound and was parked under a tree. Immediately, this complainant and his staff surrounded the said vehicle and with the help of a torch, they inspected the vehicle. They noticed the presence of a driver on the driver seat and another person was found on the hind seat. They tried to run away from the place by opening the door. But complainant did not allow them. He enquired the driver and he told his name as Lingaraju s/o Rajeeva another person was Shivappa. It is further stated that, there was one fertiliser plastic bag which was being possessed by one person and he told his name as Srinivas s/o Venakataraju being a coolie. On inspection of the said bag they noticed the presence of tiger skin containing bullet holes. Thus, it is alleged that said accused persons have committed the offences under the provisions of the Wild Life (Protection) Act and committed theft of the tiger skin. This complainant lodged the complaint as per Ex.P1 before the Kollegala Police Station.

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As per the records, Ex.P2 the panchanama and Ex.P3 seizure panchanama were prepared in the presence of panchas.

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P.W.1 being the Dy.S.P. at relevant time has spoken on par with the contents of the complaint. He identifies M.O. Nos.1 and 2 the tiger skin and plastic bag. It is brought on record in the cross-examination that, during his police service he has seized two tiger skins and one bone of a tiger. He says that he cannot say the age of the said tiger of which the said skin is seized. According to him, he went to APMC yard in a department vehicle. He further states that one Shivakumara brought out the said bag from the said vehicle. He denies other suggestions.

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P.W.2 Lokesh is a police official who corroborates the evidence of P.W.1 in material particulars. He too has been thoroughly cross-examined. According to his crossexamination, he cannot say the boundaries of the place where these accused were caught hold. According to the said police where the car was parked was about 150 meters away from

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the place where they were standing and watching. He denied other suggestions.

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P.W.3 Anil Kumar was a probationery PSI accompanied P.W.1. According to his evidence, the said bag was below the seat, and it was not measured. One amongst the police officials, opened the said bag.

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P.W.4 Lingaraju states that he put his signature to Ex.P2 near the RMC Yard where he parked his taxi. He hired his vehicle and charged Rs.100/-. He cannot say that from where the said accused persons had got the said tiger skin. He says that on that day, himself, Shivappa and his servant were only there. The servant was sitting behind. But the prosecution case is that there were four persons who were arraigned as accused had committed the offence. It is the case of prosecution that accused Nos.1 and 2 secured tiger skin from accused Nos.3 and 4. He says that for the first time, he is seeing Shivappa in the Court.

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P.W.5 Kombaradasi Naika and P.W.6 Raja Naika are panchas to Ex.P3. But they have been turned hostile. Nothing worth has been elicited from the mouth of these witnesses so

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as to disbelieve their version given in the examination-inchief.

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P.W. 7 Puttalingegowda was a watchman working with Achgal lodge and he too has deposed ignorance with regard to seizure of tiger skin from the possession of the accused. He has been declared hostile by prosecution. But no crossexamination is directed to him.

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P.W.8 Dr. Shivanna was the veterinary doctor who has issued Ex.P5 certifying that the said skin is a tiger skin. The said certificate is not denied. Except the bald crossexamination, nothing is elicited. Thus, from the evidence of P.W.8 it is very much clear that the said skin was a tiger hide(skin). To that extent, I believe the evidence of P.W.8.

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P.W.9 M. Narayana is the I.O. who has filed the chargesheet. P.W.10 Anand Rao B.N. is the person who has reached the FIR to the Magistrate Court. The role being played by P.W.9 in conducting investigation having been spoken to by this P.W.9. He says in the cross-examination that Maruti Omni car is now seized by him. He has denied other suggestions.

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P.W.10 Puttalingegowda speaks with regard to arrest of

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accused persons and producing them before the Court.

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P.W.11 Sadhik is a signatory to Ex.P7 panchanama but has been turned hostile. Nothing worth is elicited from this witness.

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On perusal of the entire oral and documentary evidence, we find that there are so many discrepancies, inconsistencies, omissions in the evidence of these witnesses. Except the police officials, none have stated any incriminating evidence against the accused persons. Further, the panchas to the panchanama stated supra, have turned hostile. In all criminal cases panchas are the authors of the panchanama. If they turn hostile, no evidentiary value can be attached to the evidence of panchas. These factual evidence spoken to by the witnesses is not properly assessed and evaluated by the Trial Court as well as the First Appellate Court.

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The main submission of learned counsel for the accused is that the very filing of a complaint by PW.1 being the Dy. S.P. is illegal and hence the whole proceedings against accused is vitiated. In support of his submissions, he relies

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upon S.55 of the Wild Life (Protection) Act, 1972. The said provision reads as under:

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"55. Cognizance of offences.—No court shall take cognizance of any offence against this Act except on the complaint of any person other than—

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(a) the Director of Wild Life Preservation or any other officer authorised in this behalf by the Central Government; or

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(aa) the Member-Secretary, Central Zoo Authority in matters relating to violation of the provisions of Chapter IVA; or

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(ab) Member-Secretary, Tiger Conservation Authority; or

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(ac) Director of the concerned tiger reserve; or

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(b) the Chief Wild Life Warden, or any other officer authorised in this behalf by the State Government subject to such conditions as may be specified by that Government; or

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(bb) the officer-in-charge of the zoo in respect of violation of provisions of section 38J; or

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(c) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Central Government or the State Government or the officer authorised as aforesaid."

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He also relies upon the Judgments stated supra, wherein this Court in the aforesaid Revision Petition in Crl. RP No.359/2011 has categorically held that in view of Section 55 of the Wild Life (Protection) Act, no court is empowered to take cognizance of any offence against the accused, except on the complaint of any person other than described in Section 55 of the Wild Life (Protection) Act.

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The word "complaint" has been described under S.2(d) of Cr.P.C.

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On reading the provisions of Section 2(d) of Cr.P.C. and Section 55 of the said Wild Life (Protection) Act, it can be stated that, to initiate action for the purpose of investigation, complaint has to be submitted to the Magistrate by anyone of the category of persons referred to in Section 55 and upon receipt of such a complaint, the Magistrate shall take cognizance following the procedure prescribed under S.200 of Cr.P.C. Thus, on this point, it excludes police report or report of the investigation by the police suo-motu. If this provision is applied to the present facts of the case, as rightly submitted by counsel for accused Nos.1 and 2, the very filing of

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complaint, conducting of investigation by the police and filing of charge-sheet is against the spirit of Section 55 of the Wild Life (Protection) Act. Even the other Judgments relied upon by the counsel for the accused speaks similar principle.

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Though the learned HCGP for the State justifies the Judgment and sentencing Order passed by both the Courts, but the witnesses examined in this case except Lingaraju are the official witnesses. The independent witnesses including the panchas have not supported the case of the prosecution in material particulars. Thus, seizure mahazars have not been proved as panchas to the mahazar have not supported the case of prosecution. If at all MOs. 1 and 2 are seized in the presence of panchas there was no reason for them to turn hostile and give a go bye to the contents of the panchanama.

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In this case, on the complaint filed by the incompetent person, learned Trial Court conducted the trial and passed the Judgment of conviction and sentence. The learned Appellate Court also has lost sight of the provisions of the Section 55 of the Wild Life(Protection) Act. More so it is settled that, when two views are possible, the view in favour of the accused has

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to be preferred when there are inconsistencies, contradictions in the evidence of the prosecution witnesses. Therefore, there arises a doubt in the case of prosecution and that benefit of doubt has to be given to accused persons. Therefore the petitioners being accused Nos. 1 and 2 are entitled for acquittal. Accordingly, I record my finding on the point No.1 in the affirmative.

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In view of my discussions made above, the Revision Petition filed by the petitioners succeeds and deserves to be allowed.

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Resultantly, I pass the following:

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ORDER

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Revision Petition filed under Section 397 read with Section 401 of Cr.P.C. is allowed. Judgment of conviction passed in C.C. No.141/2009 on the file of Senior Civil Judge and JMFC, Kollegala, affirmed by Dist. and Sessions Judge, Chamarajanagar, in Crl.A. No.22/2010, is set aside.

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Consequentially, accused Nos. 1 and 2 being the Revision Petitioners are acquitted of the charges for the

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(Protection) Act, 1972 read with Section 379 of IPC. Their bail bonds shall stand cancelled with liberty.

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Intimate this order to both the courts forthwith. Send

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back the records of the Appellate and Trial Court, along with a

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copy of this Order.

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